Tasini Case Goes Back to the Supreme Court
Andrew Albanese -- Library Journal, 03/04/2009
- Case will be heard in fall
- Issues still far from resolution
- No copyright, no peace?
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(This article first appeared in the March 3 issue of the LJ Academic Newswire.)
In yet another twist to what may turn out to be the digital era’s defining legal drama, the Supreme Court this week agreed to review whether the Second Circuit Court of New York erred in rejecting a controversial settlement to the landmark Tasini v. New York Times case. In late 2007, by a 2-1 margin, the court rejected a proposed settlement, asserting it did not have jurisdiction to approve payments under the plan to writers with unregistered copyrights.
In its decision to review, the Supreme Court will look at whether the Second Circuit has such jurisdiction. The case will be argued sometime in the fall.
For now, the Supreme Court decision keeps hope alive that the long-running case may actually, one day, come to a close—but it is likely there is still no quick or easy conclusion to the litigation. While all three groups—publishers, writers, and objectors—argued for the Supreme Court to oppose the Second Circuit’s rejection, the real test will begin once the Supreme Court rules.
If the court affirms the Second Circuit’s ruling, the settlement is all but dead. That could lead an array of outcomes. Publishers could opt to pull unlicensed freelance articles from databases, punching holes in the historical record, as noted in one publishers' brief. Librarians have repeatedly voiced concerns about this outcome, as their database acquisitions would become incomplete.
No copyright, no peace?
Publishers could also craft a new settlement with writers that does not include unregistered copyrights. Any new settlement excluding unregistered copyrights, however, would likely not bring publishers the “complete peace” they seek, as unregistered writers could still register their works, and file a new wave of individual lawsuits.
“In this universe of infringements, more than 99 percent of the copyrighted works were not registered,” explained Irv Muchnick, an author and objector to the original settlement. That means that a settlement including only registered works would leave a vast majority, potentially millions, of unregistered individual articles written on a freelance basis for newspapers and magazines all looming as potential lawsuits.
“Complete peace,” Muchnick told LJ in December, 2008, “essentially means an end to legal exposure, and that simply cannot happen without a formula that includes both registered and unregistered copyrighted works.”
Of course, while Muchnick and other objectors hope the Supreme Court will overrule the Second Circuit’s rejection, they still oppose the merits of the settlement, and hope to see the current $18 million deal quashed. “For objectors to the settlement, including myself, the intervention of [Supreme Court] holds out the possibility that the settlement as currently structured will be overturned on its merits after being reinstated for consideration by the Second Circuit,” Muchnick told the LJ Academic Newswire.
Specifically, Muchnick does believe that the $18 million settlement is too low. More important than money, however, he objects to what he calls the settlement’s “license-by-default” giveaway of all rights in perpetuity. “For writers who did nothing by the claims deadline, the result is a terrible perversion of copyright principle,” Muchnick explained to LJAN in 2007. “In effect, the default means that someone who wrote something somewhere years ago, by lack of knowledge of the settlement or refusal to read pages of legal documents, stands to give away rights in perpetuity for that work.” Muchnick said he instead supports a “compulsory license” for reusing magazine and newspaper articles in new tech products.
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